Botswana Democratic Party (BDP) politicians aspiring to contest Bulela Ditswe in opposition held constituencies on October 21 are running helter skelter exerting pressure on Government to block civil servants from participating. On Friday, two months after Justice Modiri Letsididi ruled that public officers are free to vote in political party primary elections, senior state counsel Matlhogonolo Phuthego pleaded with the Court of Appeal to expedite a hearing of the appeal. Appearing before Justice Isaac Lesetedi alongside state attorney Oteng Thamuku, Phuthego proposed that the appeal be heard in two weeks before political parties hold primary elections in the last quarter of 2017, particularly the BDP's Bulela Ditswe scheduled for October 21, four weeks from now. Deputy Secretary General of the BDP, Shaw Kgathi, has deposed an affidavit supporting the appeal, which is moved by his colleague – Presidential Affairs, Governance and Public Administration Minister Eric Molale. Molale, then Permanent Secretary to the President (PSP), blocked civil servants from participating in party primary elections shortly before Bulela Ditswe 2013 through a Directive dated 28 November 2013. The decision was a self-preservation strategy when the ruling BDP was facing a backlash from civil servants following the ill-fated 2011 public sector strike. It is common knowledge that Molale will contest the upcoming Bulela Ditswe in Goodhope/Mabule constituency where he will face off with former BDP National Youth Executive Committee chairman Fankie Motsaathebe. Motivating a plea for the appeal to be expedited, Phuthego argued that Justice Letsididi failed to deal with some of the arguments they raised when the matter was heard at the High Court and did not consider the same in his judgment, which they are dissatisfied with. He said the Public Service Act, supported by the General Orders, make it illegal for public officers to vote in party primary elections. The two legal instruments prohibit political activism or participation in partisan politics, he said. With the foregoing, Phuthego said they have a good case with prospects of success on appeal despite failing to explain what harm the state will suffer if the matter was heard in the normal course, when questioned by Justice Lesetedi. Phuthego had also failed to proffer a solution to a predicament created by unavailability of a slot in the October session of the CoA and schedules already set by political parties for their primary elections. Justice Lesetedi had asked Phuthego what value his clients stand to derive from pursuing the urgency of the appeal when it is clear that it can only be heard in November, at the earliest. The judge also had difficulty with understanding why Government waited for two months (after becoming aware of the judgment in July) to lodge an appeal only to expect the matter to heard in two weeks, which he said denies the respondents a fair opportunity to prepare opposition.
In fact, attorney Mboki Chilisa representing NALCGPWU (manual workers’ union), pounced on the opportunity and submitted that the urgency suggested is self-inflicted and a plot for political expediency. He said the urgency alleged is at the behest of political parties and not public interest, even wondering if Government is asking the CoA to adjust its schedule at the determination and instruction of political parties. Taking a swipe at Government, Chilisa said it is surprising that they waited for so long only to raise two grounds of appeal without any compelling reasons for the matter to heard before many others already scheduled for the next session of the CoA. He said the appeal has slim prospects of success when considering context, which takes into account the historical background of the matter. "As far back as 1971 public officers have been free to attend political party meetings (conferences/ congress) provided they do not speak at such gathering. In fact, industrial class workers used to be free to stand for political office. Even if voting in primaries in the past was in violation of the Act such has not caused any harm as the public service remains neutral and intact. No harm has been demonstrated so far," argued Chilisa. Chilisa said the findings by Justice Letsididi were correct in that voting in party primary elections does not constitute political activism as envisaged in Section 5(5) of the Public Service Act (PSA) No. 30 of 2009. He said it could not have been the vision of legislature to promulgate laws that curtail freedoms and rights of workers. Former Botswana Public Employees Union (BOPEU) president Andrew Motsamai, sat with his erstwhile comrades from NALCGPWU in the public gallery during the court session. Although both trade unions launched the lawsuit together when Motsamai was still at the helm, the new BOPEU leadership has resolved not to defend the judgment but abide by any outcome. Asked if they have prepared another hit-list for upcoming primaries, NALCGPWU National Organising Secretary, Johnson Motshwarakgole – who has filed opposing papers to the appeal – chuckled and declined to comment. Through public sector federation BOFEPUSU where he is the Labour Secretary, Motshwarakgole led an onslaught on BDP politicians in a drawn hit-list ahead of 2014 general elections. At the conclusion of the arguments Justice Lesetedi indicated that it is impossible for the matter to be heard in two weeks, but can only be considered in November or January 2018. The final ruling on the application for an expedited appeal will be delivered on Tuesday.